28. We have already indicated that the trial court has
found that no offence under Section 304-B IPC has been
made out against the accused, but it convicted the
accused under Section 306 IPC, even though no charge
had been framed on that section against the accused.
The scope and ambit of Section 306 IPC has not been

“306. Abetment of suicide.– If any person
commits suicide, whoever abets the commission of such
suicide, shall be punished with imprisonment of either
description for a term which may extend to ten years,
and shall also be liable to fine.”

Abetment of suicide is confined to the case of persons
who aid or abet the commission of the suicide. In the
matter of an offence under Section 306 IPC, abetment
must attract the definition thereof in Section 107 IPC.
Abetment is constituted by instigating a person to
commit an offence or engaging in a conspiracy to
commit, aid or intentional aiding a person to commit
it. It would be evident from a plain reading of Section
306 read with Section 107 IPC that, in order to make
out the offence of abetment or suicide, necessary proof
required is that the culprit is either instigating the
victim to commit suicide or has engaged himself in a
conspiracy with others for the commission of suicide, or
has intentionally aided by an act or illegal omission in
the commission of suicide.

29. In the instant case, of course, the wife died few
months after the marriage and the presumption under
Section 113-A of the Evidence Act could be raised.
Section 113-A of the Evidence Act reads as follows:

“113-A. Presumption as to abetment of suicide
by a married woman.– When the question is
whether the commission of a suicide by a woman had
been abetted by her husband or any relative of her
husband and it is shown that she had committed
suicide within a period of seven years from the date of
her marriage and that her husband or such relative of
her husband had subjected her to cruelty, the court may
presume, having regard to all the other circumstances
of the case, that such suicide had been abetted by her
husband or by such relative of her husband.”

30. We are of the view that the mere fact that if a
married woman commits suicide within a period of
seven years of her marriage, the presumption under
Section 113-A of the Evidence Act would not
automatically apply. The legislative mandate is that
where a woman commits suicide within seven years of
her marriage and it is shown that her husband or any
relative of her husband has subjected her to cruelty, the
presumption as defined under Section 498-A IPC, may
attract, having regard to all other circumstances of the
case, that such suicide has been abetted by her husband
or by such relative of her husband. The term “the Court
may presume, having regard to all the other
circumstances of the case, that such suicide had been
abetted by her husband” would indicate that the
presumption is discretionary. So far as the present case
is concerned, we have already indicated that the
prosecution has not succeeded in showing that there
was a dowry demand, nor would the reasoning adopted
by the courts below would be sufficient enough to draw
a presumption so as to fall under Section 113-A of the
Evidence Act.

31. In this connection, we may refer to the
judgment of this Court in Hans Raj v. State of
Haryana, wherein this Court has examined the scope of
Section 113-A of the Evidence Act and Sections 306,
107, 498-A, etc. and held that, unlike Section 113-A of
the Evidence Act, a statutory presumption does not
arise by operation of law merely on the proof of
circumstances enumerated in Section 113-A of the
Evidence Act. This Court held that, under Section 113-A
of the Evidence Act, the prosecution has to first
establish that the woman concerned committed suicide
within a period of seven years from the date of her
marriage and that her husband has subject her to
cruelty. Even though those facts are established, the
court is not bound to presume that suicide has been
abetted by her husband. Section 113-A, therefore, gives
discretion to the court to raise such a presumption
having regard to all other circumstances of the case,

which means that where the allegation is of cruelty, it
can consider the nature of cruelty to which the woman
was subjected, having regard to the meaning of the
word “cruelty” in Section 498-A IPC.

33. In Pinakin Mahipatray Rawal v. State of
Gujarat, this Court has examined the scope of Section
113-A of the Evidence Act, wherein this Court has
reiterated the legal position that the legislative
mandate of Section 113-A of the Evidence Act is that if
a woman commits suicide within seven years of her
marriage and it is shown that her husband or any
relative of her husband had subjected her to cruelty, as
per the presumption defined in Section 498-A IPC, the
court may presume, having regard to all other
circumstances of the case, that such suicide had been
abetted by the husband or such person. The court held
that, though a presumption could be drawn, the burden
of proof of showing that such an offence has been
committed by the accused under Section 498-A IPC is
on the prosecution. The court held that the burden is on
the prosecution to establish the fact that the deceased
committed suicide and the accused abetted the suicide.
In the instant case, there is no evidence to show
whether it was an accidental death or whether the
deceased had committed suicide.

26. Section 113-A only deals with a presumption
which the court may draw in a particular fact situation
which may arise when necessary ingredients in order to
attract that provision are established. Criminal law
amendment and the rule of procedure was necessitated
so as to meet the social challenge of saving the married
woman from being ill-treated or forcing to commit
suicide by the husband or his relatives, demanding
dowry. Legislative mandate of the section is that when
a woman commits suicide within seven years of her
marriage and it is shown that her husband or any
relative of her husband had subjected her to cruelty as
per the terms defined in Section 498-A IPC, the court
may presume having regard to all other circumstances
of the case that such suicide has been abetted by the
husband or such person. Though a presumption could
be drawn, the burden of proof of showing that such an
offence has been committed by the accused under
Section 498-A IPC is on the prosecution. On facts, we
have already found that the prosecution has not
discharged the burden that A-1 had instigated,
conspired or intentionally aided so as to drive the wife
to commit suicide or that the alleged extramarital
affair was of such a degree which was likely to drive the
wife to commit suicide.

16. The appellants contended that the learned
Single Judge, after examining the F.I.R., R.D.O. report
and Statements of the Witnesses under Section 161,
Cr.P.C. found that there were no allegations against the
appellants herein from the inception either by the
complainant or by the mother of the deceased and has
further held that there was no element of dowry related
harassment and/or any cruelty meted out to the
deceased by her sister-in-law or for that matter by any
of the accused. In view of the above categorical findings,
the learned Single Judge quashed the charges under
Sections 304-B and 498-A, I.P.C. However, the learned
Single Judge failed to appreciate that on the basis of
the material available on record and in the absence of
any allegation, if no offence is made out against the
appellants under Sections 304-B and 498-A, then the
appellants cannot be convicted under Section 306,
I.P.C. It is stated that to attract the provisions of
Section 306, I.P.C., the allegations as to the existence of
cruelty, dowry harassment and abetment to suicide are
all integrated. In absence of any allegations under
Sections 498-A and 304-B, I.P.C. provisions of Section
306, I.P.C. cannot be attracted.

7. Section 107, I.P.C. defines abetment to mean
that a person abets the doing of a thing if he firstly,
instigates any person to do that thing; or secondly,
engages with one or more other person or persons in
any conspiracy for the doing of that thing, if an act or
illegal omission takes place in pursuance of that
conspiracy and in order to the doing of that thing; or
thirdly, intentionally aids, by any act or illegal
omission, the doing of that thing.

8. Before we advert further, at this stage we may
notice a few decisions of this Court, relevant for the
purpose of disposal of this case.

9. In Swamy Prahaladdas v. State of M.P. and
Anr., 1995 Supp. (3) SCC 438, the appellant was
charged for an offence under Section 306, I.P.C. on the
ground that the appellant during the quarrel is said to
have remarked the deceased ‘to go and die’. This Court
was of the view that mere words uttered by the accused
to the deceased ‘to go and die’ were not even prima facie
enough to instigate the deceased to commit suicide.

10. In Mahendra Singh v. State of M.P. 1995
Supp. (3) SCC 731, the appellant was charged for an
offence under Section 306, I.P.C. basically based upon
the dying declaration of the deceased, which reads as

“My mother-in-law and husband and sister-in-law
(husband’s elder brother’s wife) harassed me. They beat
me and abused me. My husband Mahendra wants to
marry a second time. He has illicit connections with my
sister-in-law. Because of those reasons and being
harassed I want to die by burning.”

11. This Court, considering the definition of
‘abetment’ under Section 107, I.P.C., found that the
charge and conviction of the appellant for an offence
under Section 306 is not sustainable merely on the
allegation of harassment to the deceased. This Court
further held that neither of the ingredients of abetment
are attracted on the statement of the deceased.

12. In Ramesh Kumar v. State of Chhattisgarh
(2001) 9 SCC 618, this Court while considering the
charge framed and the conviction for an offence under
Section 306, I.P.C. on the basis of dying declaration
recorded by an Executive Magistrate, in which she had
stated that previously there had been quarrel between
the deceased and her husband and on the day of
occurrence she had a quarrel with her husband who
had said that she could go wherever she wanted to go
and that thereafter she had poured kerosene on herself
and had set fire. Acquitting the accused this Court said:

“A word uttered in a fit of anger of emotion without
intending the consequences to actually follow cannot be
said to be instigation. If it transpires to the court that a
victim committing suicide was hypersensitive to
ordinary petulance, discord and difference in domestic
life quite common to the society to which the victim
belonged and such petulance discord and difference
were not, expected to induce a similarly circumstanced
individual in a given society to commit suicide, the
conscience of the court should not be satisfied for
basing a finding that the accused charged for abetting
the offence of suicide should be found guilty.”

13. Reverting to the facts of the case, both the
courts below have erroneously accepted the prosecution
story that the suicide by the deceased is the direct result
of the quarrel that had taken place on 25 th July, 1998
wherein it is alleged that the appellant has used abusive
language and had reportedly told the deceased ‘to go
and die’. For this, the courts relied on a statement of
Shashi Bhushan, brother of the deceased, made under
Section 161 Cr.P.C. when reportedly the deceased, after
coming back from the house of the appellant, told him
that the appellant had humiliated him and abused him
with filthy words. The statement of Shashi Bhushan,
recorded under Section 161 Cr.P.C. is annexed as
annexure P-3 to this appeal and going through the
statement, we find that he has not stated that the
deceased had told him that the appellant had asked
him ‘to go and die’. Even if we accept the prosecution
story that the appellant did tell the deceased ‘to go and
die’, that itself does not constitute the ingredient of
‘instigation’. The word ‘instigate’ denotes incitement or
urging to do some drastic or unadvisable action or to
stimulate or incite. Presence of mens rea, therefore, is
the necessary concomitant of instigation. It is common
knowledge that the words uttered in a quarrel or in a
spur of the moment cannot be taken to be uttered with
mens rea. It is in a fit of anger and emotional.
Secondly, the alleged abusive words, said to have been
told to the deceased were on 25th July, 1998 ensued by
quarrel. The deceased was found hanging on 27 th July,
1998. Assuming that the deceased had taken the
abusive language seriously, he had enough time in
between to think over and reflect and, therefore, it
cannot be said that the abusive language, which had
been used by the appellant on 25th July, 1998 drived
the deceased to commit suicide. Suicide by the deceased
on 27th July, 1998 is not proximate to the abusive
language uttered by the appellant on 25 th July, 1998.
The fact that the deceased committed suicide on 27th
July, 1998 would itself clearly pointed out that it is not
the direct result of the quarrel taken place on 25 th July,
1998 when it is alleged that the appellant had used the

abusive language and also told the deceased to go and
die. This fact had escaped notice of the courts below.

16] Ms. Rajasi Mardikar, the learned counsel has also

drawn my attention to the judgment of the Hon’ble Supreme

Court in Rajesh Sharma ors. vs. State of U.P. Anr. delivered on

27.07.2017 and in particular to paragraph 14 which reads thus:

14. Section 498A was inserted in the statute with
the laudable object of punishing cruelty at the hands of
husband or his relatives against a wife particularly
when such cruelty had potential to result in suicide or
murder of a woman as mentioned in the State of
Objects and Reasons of the Act 46 of 1983. The
expression ‘cruelty’ in Section 498A covers conduct
which may drive the women to commit suicide or cause
grave injury (mental or physical) or danger to life or
harassment with a view to coerce her to meet unlawful
demand. It is a matter of serious concern that large
number of cases continue to be filed under Section
498A alleging harassment of married women. We have
already referred to some of the statistics from the Crime
Records Bureau. This Court had earlier noticed the fact
that most of such complaints are filed in the heat of the
moment over trivial issues. Many of such complaints
are not bona fide. At the time of filing of the complaint,
implications and consequences are not visualized. At
times such complaints lead to uncalled for harassment
not only to the accused but also to the complainant.
Uncalled for arrest may ruin the chances of settlement.
This Court had earlier observed that a serious review of
the provision was warranted. The matter also appears
to have been considered by the Law Commission, the
Malimath Committee, the Committee on Petitions in

the Rajya Sabha, the Home Ministry, which have been
referred to in the earlier part of the Judgment. The
abuse of the provision was also noted in the judgments
of this Court referred to earlier. Some High Courts have
issued directions to check such abuse. In Arnesh Kumar
(supra) this Court gave directions to safeguard uncalled
for arrests. Recommendation has also been made by the
Law Commission to make the offence compoundable.

My attention is drawn to the directions issued by the

Hon’ble Supreme Court in paragraph 19 of the judgment.

Ms. Rajasi Mardikar would submit that the case at hand is also a

glaring example of the misuse of the provisions of section 498-A of

I.P.C. which fell for consideration before the Hon’ble Supreme

Court and necessitated the directions incorporated in paragraph

19 of the judgment, which reads thus:-

19. Thus, after careful consideration of the whole
issue, we consider it fit to give following directions :-

i) (a) In every district one or more Family Welfare
Committees be constituted by the District Legal Services
Authorities preferably comprising of three members.
The constitution and working of such committees may
be reviewed from time to time and at least once in a
year by the District and Sessions Judge of the district
who is also the Chairman of the District Legal Services
Authority.

(b) The Committees may be constituted out of para
legal volunteers/social workers/retired persons/wives of
working officers/other citizens who may be found
suitable and willing.

(d) Every complaint under Section 498A received by the
police or the Magistrate be referred to and looked into
by such committee. Such committee may have
interaction with the parties personally or by means of
telephone or any other mode of communication
including electronic communication.

(e) Report of such committee be given to the Authority
by whom the complaint is referred to it latest within
one month from the date of receipt of complaint.

(f) The committee may give its brief report about the
factual aspects and its opinion in the matter.

(g) Till report of the committee is received, no arrest
should normally be effected.

(h) The report may be then considered by the
Investigating Officer or the Magistrate on its own merit.

(i) Members of the committee may be given such basic
minimum training as may be considered necessary by
the Legal Services Authority from time to time.

(j) The Members of the committee may be given such
honorarium as may be considered viable.

(k) It will be open to the District and Sessions Judge to
utilize the cost fund wherever considered necessary and
proper.

ii) Complaints under Section 498A and other connected
offences may be investigated only by a designated
Investigating Officer of the area. Such designations may
be made within one month from today. Such
designated officer may be required to undergo training
for such duration (not less than one week) as may be
considered appropriate. The training may be completed

iii) In cases where a settlement is reached, it will be open to
the District and Sessions Judge or any other senior
Judicial Officer nominated by him in the district to
dispose of the proceedings including closing of the
criminal case if dispute primarily relates to
matrimonial discord;

iv) If a bail application is filed with at least one clear day’s
notice to the Public Prosecutor/complainant, the same
may be decided as far as possible on the same day.
Recovery of disputed dowry items may not by itself be a
ground for denial of bail if maintenance or other rights
of wife/minor children can otherwise be protected.
Needless to say that in dealing with bail matters,
individual roles, prima facie truth of the allegations,
requirement of further arrest/custody and interest of
justice must be carefully weighed;

v) In respect of persons ordinarily residing out of India
impounding of passports or issuance of Red Corner
Notice should not be a routine;

vi) It will be open to the District Judge or a designated
senior judicial officer nominated by the District Judge
to club all connected cases between the parties arising
out of matrimonial disputes so that a holistic view is
taken by the Court to whom all such cases are
entrusted; and

vii) Personal appearance of all family members and
particularly outstation members may not be required
and the trial court ought to grant exemption from
personal appearance or permit appearance by video
conferencing without adversely affecting progress of the
trial.

viii) These directions will not apply to the offences involving
tangible physical injuries or death.

498-A. Husband or relative of husband of a
woman subjecting her to cruelty.– Whoever, being
the husband or the relative of the husband of a woman,
subjects such woman to cruelty shall be punished with
imprisonment for a term which may extend to three
years and shall also be liable to fine.

Explanation.– For the purpose of this section,
“cruelty” means–

(a) any wilful conduct which is of such a nature
as is likely to drive the woman to commit suicide or to

cause grave injury or danger to life, limb or health
(whether mental or physical) of the woman; or

(b) harassment of the woman where such
harassment is with a view to coercing her or any person
related to her to meet any unlawful demand for any
property or valuable security or is on account of failure
by her or any person related to her to meet such
demand.